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Parties Urge Transfer of Small Cell Appeals to Ninth Circuit

Twenty Western localities that have challenged the small cell order adopted by the FCC in September have asked the U.S. Court of Appeals for the Tenth Circuit (Denver) to transfer six petitions for review to the Ninth Circuit (San Francisco).

Earlier this month, the U.S. Judicial Panel on Multidistrict Litigation released an order consolidating the cases — which had been filed in the First (Boston), Second (New York), Ninth, and Tenth circuits — in the Tenth Circuit (TR Daily, Nov. 2).

A motion filed yesterday in consolidated cases beginning at 18-9563 cited a number of other localities and municipal groups that support the transfer of the cases to the Ninth Circuit but said the FCC opposes the transfer, as do petitioners Sprint Corp., Verizon Communications, Inc., and Puerto Rico Telephone Company, Inc., and intervenors CTIA and the Competitive Carriers Association. The filing said that the Department of Justice has not taken a position on the transfer motion.

The filing noted that the city of Portland, Ore., was the first entity to submit a petition for review (TR Daily, Oct. 2) to overturn the FCC’s August declaratory ruling in its one-touch make-ready (OTMR) pole attachment proceeding that said that the FCC would preempt “on a case-by-case basis, state and local laws that inhibit the rebuilding or restoration of broadband infrastructure after a disaster” (TR Daily, Aug. 3).

Portland’s petition was filed in the Ninth Circuit. Another appeal of that order was filed in the Eleventh Circuit (Atlanta) by nine electric utilities (TR Daily, Oct. 26). The FCC is seeking to have that petition transferred to the Ninth Circuit.

“Here, the August Order and September Order can be treated as the same order. Both orders are associated with the same dockets, arise out of the same administrative record, and govern aspects of an agency undertaking intended to accelerate deployment of wireline and wireless infrastructure,” yesterday’s filing said.

“A review of the timing of the various filings shows that the Ninth Circuit is the proper venue. Portland’s petition in the Ninth Circuit was the first to be filed on October 2, 2018. The MDL wasn’t triggered until nearly three weeks later,” the motion said. “Thus, because the Ninth Circuit was the court in which proceedings were ‘first instituted,’ that is the Court in which the FCC must file the record from which both the August Order and September Order arise and this Court should accordingly transfer the petitions challenging the September Order to the Ninth Circuit.”

Separately, the FCC has filed an unopposed motion asking the D.C. Circuit to transfer to the Tenth Circuit a small cell legal challenge filed by AT&T, Inc., (case 18-1294). That case has been consolidated with a small cell challenge submitted by the American Public Power Association. AT&T’s petition for review didn’t qualify for the judicial lottery because the FCC was not served with a date-stamped copy of AT&T’s petition for review by the lottery deadline. The American Public Power Association submitted its petition after that.

Although the wireless industry generally supported adoption of the small cell item in September (TR Daily, Sept. 26), carriers said they challenged it because the FCC did not adopt a deemed granted remedy. More than two dozen Western localities and municipal groups overall have filed petitions challenging the item more broadly. The American Public Power Association said that in adopting the order, “the Commission has improperly asserted regulatory authority and jurisdiction over the control and use of public power utility facilities.” —Paul Kirby, paul.kirby@wolterskluwer.com